Colorado § 14-2-309 - Enforcement.

§ 14-2-309. Enforcement.

(1) A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves:

(a) The party's consent to the agreement was involuntary or the result of duress;

(b) The party did not have access to independent legal representation under subsection (2) of this section;

(c) Unless the party had independent legal representation at the time the agreement was signed, the agreement did not include a notice of waiver of rights under subsection (3) of this section or an explanation in plain language of the marital rights or obligations being modified or waived by the agreement; or

(d) Before signing the agreement, the party did not receive adequate financial disclosure under subsection (4) of this section.

(2) A party has access to independent legal representation if:

(a) Before signing a premarital or marital agreement, the party has a reasonable time to:

(I) Decide whether to retain a lawyer to provide independent legal representation; and

(II) Locate a lawyer to provide independent legal representation, obtain the lawyer's advice, and consider the advice provided; and

(b) The other party is represented by a lawyer and the party has the financial ability to retain a lawyer or the other party agrees to pay the reasonable fees and expenses of independent legal representation.

(3) A notice of waiver of rights under this section requires language, conspicuously displayed, substantially similar to the following, as applicable to the premarital agreement or marital agreement:

If you sign this agreement, you may be:

Giving up your right to be supported by the person you are marrying or to whom you are married.

Giving up your right to ownership or control of money and property.

Agreeing to pay bills and debts of the person you are marrying or to whom you are married.

Giving up your right to money and property if your marriage ends or the person to whom you are married dies.

Giving up your right to have your legal fees paid.

(4) A party has adequate financial disclosure under this section if the party:

(a) Receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; or

(b) [Reserved]

(c) Has adequate knowledge or a reasonable basis for having adequate knowledge of the information described in paragraph (a) of this subsection (4).

(5) A premarital agreement or marital agreement or amendment thereto or revocation thereof that is otherwise enforceable after applying the provisions of subsections (1) to (4) of this section is nevertheless unenforceable insofar, but only insofar, as the provisions of such agreement, amendment, or revocation relate to the determination, modification, limitation, or elimination of spousal maintenance or the waiver or allocation of attorney fees, and such provisions are unconscionable at the time of enforcement of such provisions. The issue of unconscionability shall be decided by the court as a matter of law.

(6) [Reserved]

(7) [Reserved]

(8) A premarital or marital agreement, or an amendment of either, that is not in a record and signed by both parties is unenforceable.

Source: L. 2013: Entire part R&RE, (HB 13-1204), ch. 239, p. 1161, § 1, effective July 1, 2014. L. 2015: (5) amended, (SB 15-264), ch. 259, p. 950, § 35, effective August 5.

Editor's note: This section is similar to former § 14-2-307 as it existed prior to 2013.

ANNOTATION

Law reviews. For article, "Omitted Spouse: Avoiding Questions of Intent After Death", see 52 Colo. Law. 46 (Jan.-Feb. 2023).

Annotator's note. Since § 14-2-309 is similar to § 14-2-307 as it existed prior to the 2013 repeal and reenactment of this part 3, relevant cases construing that provision have been included in the annotations for this section. For cases dealing with the validity of marital agreements prior to 1986, see the annotations to §§ 14-10-112 and 14-10-113.

A trial court must find that the maintenance provisions of an otherwise valid antenuptial agreement are unconscionable at the time a divorce decree is entered in order to award maintenance to a party. In re Dechant, 867 P.2d 193 (Colo. App. 1993) (decided under law in effect prior to amendment effective July 1, 1986).

In determining unconscionability, the terms "appropriate employment" and "reasonable needs" are not to be interpreted so narrowly as to require a spouse to establish that he or she lacks the minimum resources to sustain life. In re Dechant, 867 P.2d 193 (Colo. App. 1993) (decided under law in effect prior to amendment effective July 1, 1986).

Trial court may review a waiver of attorney fees in a marital agreement for unconscionability at the time of dissolution, because an unconscionable waiver violates the public policy interest behind protecting spouses and thus is not a valid contract term under § 14-2-304. In re Ikeler, 161 P.3d 663 (Colo. 2007).

Standards for determining unconscionability. Generally, an agreement under this section is unconscionable if it is not fair, reasonable, and just. In re Christen, 899 P.2d 339 (Colo. App. 1995).

Speculation about possible future events, such as unemployment, disability, and remarriage, do not indicate that the agreement is at present unconscionable. In re Christen, 899 P.2d 339 (Colo. App. 1995).

When the parties enter into an agreement that provides for maintenance to be paid year-to-year in an amount calculated in accordance with a formula agreed upon by the parties and accepted as not unconscionable by the court, the trial court acts within its discretion in not setting forth an exact amount of maintenance in its decree of dissolution and permanent orders. In re Christen, 899 P.2d 339 (Colo. App. 1995).

In order for agreement for binding Rabbinical arbitration to be enforceable, it must be conscionable and must be entered into by the parties voluntarily after full disclosure. In re Popack, 998 P.2d 464 (Colo. App. 2000).

Waiver of attorney fee provision in an antenuptial agreement is voidable on the grounds of unconscionability. In re Dechant, 867 P.2d 193 (Colo. App. 1993) (decided under law in effect prior to amendment effective July 1, 1986).

Marital agreement need not be approved by the court nor a complete agreement as to the disposition of all of the parties' property to be enforceable. In re Goldin, 923 P.2d 376 (Colo. App. 1996).

But marital agreement must contain a fair and reasonable disclosure of property and financial obligations of the party seeking to enforce it, and prenuptial agreement that was blank at the time wife signed it was unenforceable by husband. In re Seewald, 22 P.3d 580 (Colo. App. 2001).

Agreement entered into just prior to marriage and a subsequent agreement entered into just prior to filing petition for dissolution were correctly considered not to be enforceable agreements under the Colorado Marital Agreement Act. Trial court correctly determined that the premarital agreement was not an enforceable premarital agreement because the parties were not contemplating marriage when they entered into it. Similarly, the later agreement was not an enforceable marital agreement because it was signed after wife petitioned for dissolution of marriage and because the parties were not on an equal emotional or economic footing. In re Green, 169 P.3d 202 (Colo. App. 2007).